Goldstein v. Polakof

Ninth Circuit

Goldstein v. Polakof

135 F.2d 45, 1943 U.S. App. LEXIS 3212

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 22, 1943

DocketNo. 10117

StatusPublished

This text of 135 F.2d 45 (Goldstein v. Polakof) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goldstein v. Polakof, 135 F.2d 45, 1943 U.S. App. LEXIS 3212 (9th Cir. 1943).

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Opinion

STEPHENS, Circuit Judge.

The estate of Marvin Polakof was in bankrupt court, and the trustee claimed that certain real property had been fraudulently transferred from Marvin Polakof to his brother, Ivan Polakof, and belonged to the estate. The issue so suggested was tried in the District Court of the United States and there was resolved in favor of defendants. The trustee appeals.

Almost at the outset appellant states in his opening brief that “This appeal is predicated mainly upon the contention that these findings are against the weight of the substantial evidence.”

Recitation of the evidence follows in the brief and we have given it close attention. There is, however, nothing before us but a request that we try the case de novo on the record. It is true that appellant states in each of his “Specifications of Errors” as to the court’s findings that “the finding * * * is against the weight of and not supported by the substantial evidence.” But in each instance the issue turns upon the trial court’s conclusion from substantial documentary evidence together with highly conflicting testimony of witnesses relating thereto.

Suffice it to say that, applying Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in giving “ * * * due regard * * * to the opportunity of the trial court to judge of the credibility of the witnesses.”, we do not find the trial court’s findings of fact “clearly erroneous.”

Affirmed.

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STEPHENS, Circuit Judge.

The estate of Marvin Polakof was in bankrupt court, and the trustee claimed that certain real property had been fraudulently transferred from Marvin Polakof to his brother, Ivan Polakof, and belonged to the estate. The issue so suggested was tried in the District Court of the United States and there was resolved in favor of defendants. The trustee appeals.

Almost at the outset appellant states in his opening brief that “This appeal is predicated mainly upon the contention that these findings are against the weight of the substantial evidence.”

Recitation of the evidence follows in the brief and we have given it close attention. There is, however, nothing before us but a request that we try the case de novo on the record. It is true that appellant states in each of his “Specifications of Errors” as to the court’s findings that “the finding * * * is against the weight of and not supported by the substantial evidence.” But in each instance the issue turns upon the trial court’s conclusion from substantial documentary evidence together with highly conflicting testimony of witnesses relating thereto.

Suffice it to say that, applying Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in giving “ * * * due regard * * * to the opportunity of the trial court to judge of the credibility of the witnesses.”, we do not find the trial court’s findings of fact “clearly erroneous.”

Affirmed.

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135 F.2d 45, 1943 U.S. App. LEXIS 3212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-polakof-ca9-1943.